Family Law Lawyers Farzad & Mazarei Discuss California Appellate Court's Ruling That a Mother’s Methamphetamine and Marijuana Use Is Not Enough to Take Her Child Away

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Court states that risk of physical harm, separate from drug use, is necessary to justify taking a child from a mother

A parent who habitually uses methamphetamine can maintain custody in a juvenile case but potentially loses it if the other parent files a request based on the same facts in family court

In a factually fascinating case, one California Appellate Court has ruled that drug use, by itself, is not enough to take a child away from a parent within the context of a juvenile court proceeding, even when that drug use involves methamphetamine and marijuana.

The very recent appellate decision is called In re Destiny S., case number B239393. The California Court of Appeal, Second Appellate District in Los Angeles made the ruling.

Destiny’s mother told the L.A. Department of Child and Family Services (DCFS) that she uses marijuana weekly but denied methamphetamine use. The mother however tested positive for methamphetamine the same day she denied use. The mother also failed a random drug test, at which time DCFS took the child from the mother and placed her with the maternal grandmother. There weren’t any direct issues with Destiny’s care. The only issue was the drug use.

The L.A. Superior Court held that the child’s mother was in denial of her drug habit and that Destiny was at risk of physical harm. The mother appealed the decision.

The California appellate court disagreed and held steadfast to its reasoning that, absent actual evidence of “serious physical harm or illness”, evidence of drug use was not enough.

Some may decry this ruling and point to the methamphetamine use as being serious enough to take the child away from the parent. No one disputes how dangerous methamphetamine is and its serious adverse effects on the body and mind. But, this is where the line between juvenile court cases and family law is drawn.

“Different standards in different courts. In family law, evidence of habitual or continued illegal use of controlled substances or even alcohol is sufficient for the court to protect the child. However, in a juvenile setting, serious risk of physical harm or illness is required. Thus, a parent who habitually uses methamphetamine can maintain custody in a juvenile case but potentially lose it if the other parent files a request, based on the same facts, in family court,” Orange County divorce attorney, B. Robert Farzad explains.

Whether cases like In re Destiny S. and the reasoning behind the appellate decision could spill over into family law rulings remains to be seen. But Mr. Farzad doesn’t think it will have an impact unless the legislature gets involved first.

“Family law cases that involve drug or alcohol abuse are not uncommon. But since family law cases are private civil cases between spouses and there is no juvenile court involvement, it is less likely that juvenile decisions will impact family law. If the State wishes to make the laws related to drug use in family law cases less or more stringent, then the legislature will have to act.”

It is unclear whether the In re Destiny S. case ever had a companion family law case. But there is some hopeful good news as Destiny’s mother tested negative for three consecutive months prior to the Superior Court’s hearing.

About B. Robert Farzad: Mr. Farzad is a divorce attorney in Orange County, California. He is a partner at the law firm of Farzad & Mazarei which is located in Santa Ana, California. The three lawyer law firm represents divorce and family law clients in Orange and Los Angeles Counties.

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